Judge: Medical marijuana grow and dispensing operations are not above local zoning law
A Washtenaw County Circuit Court judge has ruled that the Michigan Medical Marihuana Act does not pre-empt local zoning laws regulating the production and distribution of the drug.
The ruling is significant because it’s the first court challenge to zoning laws regulating medical marijuana in the state, according to Dennis McLain, Ypsilanti Township’s attorney.
Previous court challenges have been against communities that have tried to outright ban medical marijuana use, production or distribution because it is still illegal at the federal level.
The ruling is part of a case against two Ypsilanti Township residents officials charge are pumping an “intense” medical marijuana odor out of their home that is resulting from some type of processing operation in their basement. Neighbors have complained about the odor, though the defendants deny it is an issue.
Tom Perkins | For AnnArbor.com
The township also charges the defendants, Michael Engle and Deborah Klochubar, are growing more medical marijuana than allowed under the township’s zoning laws.
According to state law, a person with a medical marijuana patient’s card can grow up to 12 plants for his or her personal use. Ypsilanti Township ordinance allows residents to grow their personal plants in residential zones.
But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use. Ypsilanti Township's zoning ordinance doesn’t permit caregivers to operate in residential zones. Klochubar's and Engle's home is in such a zone.
Eric Misterovich, attorney for Engle and Klochubar, argued that state medical marijuana laws pre-empt local ordinances, and the township’s zoning ordinances regarding medical marijuana are not enforceable.
The state law does not say where medical marijuana can and cannot be grown.
Misterovich asked Washtenaw County Circuit Court Judge Archie Brown to dismiss the case, but Brown disagreed with Misterovich's assessment.
“There are no provisions in the MMMA that prohibit municipalities from adopting zoning ordinances regulating where medical marijuana caregivers can grow and dispense marijuana for other patients,” Brown wrote in his ruling.
Misterovich did not return calls from AnnArbor.com. seeking comment.
“This is a significant issue; whether densely populated neighborhoods can be taken over by medical marijuana grow operations. We’re definitely fighting that to the end,” McLain said.